Harold Koh and the shape of things to come

Most of the criticism of Harold Koh’s selection to be the State Department’s legal advisor has focused on his “transnationalist” legal theories. I collected some of that criticism in the post below.

However, a reader reminds me that the most prominent legal issue Koh was involved in as Dean of Yale Law School was opposition to military recruiting on campus. Dean Koh was a prominent supporter of the FAIR v. Rumsfeld litigation, as well as Yale’s separate litigation. In that litigation “FAIR” challenged the constitutionality of the Solomon Amendment, which conditioned the receipt of federal funding by universities on the provision of access to equal to that provided other employers. Koh signed a friend of the court brief on behalf of FAIR’s challenge. A unanimious Supreme Court rejected that challenge.

We wrote about this litigation many times. This post may provide a helpful summation.

The bottom line is: in the name of his own leftist policy preferences, Koh thumbed his nose at Congress and took a position that inflcited harm on the U.S. military based on a legal position so weak that it failed to obtain the vote of a single Supreme Court Justtice (not Souter, Breyer, Ginsburg, or Sevens). It is not unreasonable to fear that, as legal advisor to the State Department, Koh would do the same.